Court Upholds NYC’s Calorie-Posting Rules

(CN) – The 2nd Circuit upheld a New York City health code requiring about 10 percent of chain restaurants, including McDonald’s and Burger King, to post calories on menus and menu boards.

The New York State Restaurant Association, comprised of about 7,000 restaurants, challenged the constitutionality of the code, claiming it’s preempted by federal laws and constitutes compelled speech in violation of the First Amendment. The federal appeals court acknowledged that the federal scheme regulating food labeling and branding is a “labyrinth,” but said “Congress intended to exempt restaurant food from the preemption sections that are necessary to allow food to be sold interstate.” “In requiring chain restaurants to post calorie information on their menus, New York City merely stepped into a sphere that Congress intentionally left open to state and local governments,” Judge Pooler wrote. “Furthermore, although the restaurants are protected by the Constitution when they engage in commercial speech, the First Amendment is not violated, where as here, the law in question mandates a simple factual disclosure of caloric information and is reasonably related to New York City’s goals of combating obesity.” The court affirmed U.S. District Judge Howell’s refusal to bar city officials from enforcing the code. The ruling also upheld summary judgment for the New York City Board of Health and the New York City Department of Health and Mental Hygiene.